[2024] UKUT 403 (LC)

The Housing Act 2004 established a licensing regime for houses in multiple occupation (“HMOs”). There are several definitions of an HMO, and the one relevant for the present appeal is the “standard test” in section 254 of the 2004 Act, which describes a house where the occupants pay rent and share basic amenities (such as the kitchen or bathroom) and in particular where:

“(2)…

(b)

the living accommodation is occupied by persons who do not form a single household (see section 258);

(c)

the living accommodation is occupied by those persons as their only or main residence or they are to be treated as so occupying it (see section 259);

When an HMO that meets the standard test is occupied by five or more persons in two or more separate households then the HMO requires a licence (article 4 of the Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Regulation 2018).

Section 249A of the Housing Act 2004 enables a local housing authority to impose a civil penalty upon a person if it is satisfied beyond reasonable doubt that he or she has committed any of the offences listed in that section, as an alternative to prosecution. Among the offences listed is the offence under section 72(1) of the 2004 Act of managing or being in control of a house in multiple occupation that requires a licence and does not have one. Paragraph 10 of Schedule 13A to the 2004 Act makes provision for appeal to the First-tier Tribunal against the decision to impose a civil penalty and the amount of that penalty. The appeal is a re-hearing and the FTT is to make its own decision whether to impose a penalty and about the amount of the penalty; therefore the FTT itself must be satisfied, again to the criminal standard of proof, that the offence has been committed.

For a civil penalty to be imposed in relation to the section 72(1) offence it is not necessary for the offence to have been committed over any particular period. It must simply have been committed on the date on which the local housing authority stated, in its notice of intention to impose a financial penalty, that it was being committed, and of course on an appeal the FTT too has to be sure that the offence was committed on that date.